Beresford v. Pacific Gas & Electric Co. — 128 Cal. App. 2d 448

Majority

p. 448

[Civ. No. 8436.

Third Dist.

Oct. 28, 1954.]

HAROLD K. BERESFORD et al., Appellants, v. PACIFIC GAS AND ELECTRIC COMPANY (a Corporation) et al., Respondents.

Rawlins Coffman and L. C. Smith for Appellants.

Peters & Peters and Samuel Vartan for Respondents.

This is an appeal from an order after judgment taxing costs. An action was brought by Beresford et al., as plaintiffs against Pacific Gas and Electric Company

p. 449

and Public Utilities California Corporation. In that action plaintiffs sought to recover damages through loss of property by fire. During the trial of the action and when plaintiffs had first rested their case, Public Utilities California Corporation moved for a nonsuit, which motion was granted. The case proceeded against Pacific Gas and Electric Company. Plaintiffs appealed from the judgment based upon the order of nonsuit. However, they did not furnish a record for their appeal and in time the respondent Public Utilities California Corporation moved for a dismissal upon that ground. The motion was granted by this court and no special order con-, cerning costs on appeal was made. Thereafter, respondent presented its cost bill in the trial court. The bill contained two items, one of which was for “a copy of reporter’s transcript.” Appellants moved to tax costs, objecting to this item. The trial court allowed the item in the sum of $423.60. Prom the order taxing costs this appeal was taken.

That part of the order allowing as costs the amount expended by respondent herein to obtain a copy of the reporter’s transcript cannot be sustained. The matter is settled by the Rules on Appeal. Rule 26, section (c), provides that:

“The party to whom costs are awarded may recover only the following when actually incurred: (1) The cost of preparation of an original and one copy of any type of record on appeal authorized by these rules, ...”

Initially, the burden is placed upon an appellant to furnish at his own original cost an original record on appeal and a copy thereof. The copy is, under the rules, available for the use of both parties. It is contemplated, therefore, by the rules that a second copy is not required and if obtained the cost of it cannot be charged as costs. It often happens that counsel for respondent desires to purchase from the reporter a copy of the transcript for his own use. If he elects to do this, however, he does so with knowledge that the rules provide that costs cannot be allowed for more than an original and one copy of the transcript and that they require the appellant at his own first cost to furnish such original and copy.

The order taxing costs from which this appeal is taken is modified by striking therefrom the item “Copy of Reporter’s Transcript $423.60,” and as so modified the order is affirmed.

Peek, J., and Schottky, J., concurred.